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  4. Sarzynska v State of Queensland (Queensland Health) (No. 2) - [2022] QIRC 418

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Sarzynska v State of Queensland (Queensland Health) (No. 2)[2022] QIRC 418

Sarzynska v State of Queensland (Queensland Health) (No. 2)[2022] QIRC 418

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sarzynska v State of Queensland (Queensland Health) (No. 2) [2022] QIRC 418

PARTIES:

Sarzynska, Zofia

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/644

PROCEEDING:

Public Service Appeal - Appeal against a decision about suspension without pay

DELIVERED ON:

31 October 2022

HEARING DATE:

On the papers

MEMBER:

Merrell DP

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 21 September 2022 and Respondent's written submissions filed on 5 October 2022

ORDERS:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    the decision appealed against is set aside; and
  1. (b)
    another decision is substituted, namely, that the Appellant be suspended without remuneration from 10 August 2022 until 7  September 2022.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a Dental Assistant through Queensland Health in the Metro North Hospital and Health Service – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements required existing employees, who are employed to work in a hospital or other facility where clinical care or support is provided, to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID‑19 vaccine by 31 October 2021 unless exempted – Appellant applied for exemption – exemption denied – Appellant failed to comply with the Directive – Appellant afforded the opportunity to show cause why she should not be suspended without pay – Appellant provided response – Appellant advised of decision to suspend her without pay – Appellant appealed against decision to suspend her without pay – whether decision to suspend Appellant without pay was fair and reasonable – decision to suspend Appellant without pay was not fair and reasonable

LEGISLATION:

Directive: 16/20 - Suspension directive, cl 6

Health Employment Directive No. 12/21 - Employee COVID‑19 vaccination requirements, cl 8

Industrial Relations Act 2016, s 562C

Public Service Act 2008, s 137 and s 137A

CASES:

Sarzynska v State of Queensland (Queensland Health) [2022] QIRC 346

Reasons for Decision

Introduction

  1. [1]
    Ms Zofia Sarzynska is employed by the State of Queensland through Queensland Health ('the Department') as a Dental Assistant in Oral Health Services which is part of the Metro North Hospital and Health Service ('the Health Service').
  1. [2]
    The background to this decision is set out in Sarzynska v State of Queensland (Queensland Health)[1] ('Sarzynska No. 1'). This decision should be read with paragraphs [1] to [10] of Sarzynska No. 1.
  1. [3]
    The question for my determination is whether the decision by the Department to suspend Ms Sarzynska without remuneration from 7 June 2022 until 7 September 2022, contained in a letter dated 7 June 2022 from Ms Glynis Schultz, Executive Director, Community and Oral Health of the Health Service ('the decision'), was fair and reasonable.
  1. [4]
    For the reasons that follow, the decision was not fair and reasonable.

The decision

  1. [5]
    In the decision, Ms Schultz relevantly stated:

Decision on suspension without normal remuneration

Section 137(4) of the Act provides that a chief executive (or delegate) may decide that normal remuneration is not appropriate during a period of suspension, having regard to the nature of the discipline to which the delegate believes the person is liable. Under Clause 6.3 of the Public Service Commission Directive 16/20 Suspension, in making any decision, I must consider:

  • the nature of the disciplinary matter.
  • the factors not within the control of the Health Service that are preventing the timely conclusion of the discipline process; and
  • the public interest of the employee remaining on suspension with remuneration.

Whilst I have had careful regard to all material before me, including your response, I have determined that in accordance with section 137(4) of the Act that you should be suspended from duty without normal remuneration for the following reasons:

  • the nature of the disciplinary matter; and
  • The public interest in ensuring management of public resources effectively, efficiently and economically.

I note it is alleged that you have failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in the Health Employment Directive 12/21 Employee COVID‑19 vaccination requirements (the Directive). The decision to direct you to comply with the vaccination requirements set out in the Directive was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The failure by you to follow the terms of the Directive, in conjunction with your subsequent failure to follow a lawful and reasonable direction to adhere to the Directive, demonstrates a potential unwillingness (if proven) to comply with Metro North Health, and Queensland Health, policy over an extensive period of time. The nature of the disciplinary matter is therefore of a serious nature.

Further, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. I have considered the timeframe for you to comply with the Directive, specifically the Directive came into effect on 11 September 2021 and the Health Service made its employees aware of the requirements of the Directive and provided sufficient time for employees to comply with the Directive. I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration for any further period.

I have also considered very seriously your submissions that you would incur financial hardship were you to be suspended without normal remuneration. However, I do not consider these factors are sufficient to outweigh the fact that you have not followed a lawful direction to comply with the Directive. The Act and the Suspension Directive expressly contemplate that a suspension may be without normal remuneration in certain circumstances; and, in my view, it is circumstances such as those which currently exist, namely that I reasonably believe you are liable to discipline under a disciplinary law, in which suspension without normal remuneration is appropriate.

Ms Sarzynska's submissions

  1. [6]
    Ms Sarzynska relevantly submits that the decision was not fair and reasonable for the following reasons.
  1. [7]
    First, from 21 April 2022 until 9 August 2022, Ms Sarzynska had a medical contraindication against being vaccinated '… as processed and recognised by my GP the Australian Immunisation Register (AIR) certificate' ('the certificate'). By email dated 3 May 2022, Ms Sarzynska forwarded, to the Health Service, a copy of the certificate. That email was sent at a time during which Ms Sarzynska was afforded an opportunity to respond to the Health Service as to why she should not be suspended without remuneration.
  1. [8]
    By email dated the same day, the Health Service advised Ms Sarzynska that the certificate she provided related to the Australian Immunisation Register and the accessing of places such as hotels and restaurants, and that the certificate did not exempt her from Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive'). In that same email, the Health Service advised Ms Sarzynska that the Australian Technical Advisory Group on Immunisation had advised that there is no requirement to delay vaccination and recommended that persons be vaccinated when they are no longer symptomatic.
  1. [9]
    Secondly, Ms Sarzynska submits that the decision was made without consideration of her email response to the Health Service, sent on 5 May 2022, as to why she should not be suspended without remuneration and without consideration of the certificate she provided to the Health Service. Ms Sarzynska further submits that at that point in time, 5 May 2022, the Health Service had a copy of her email response, the certificate, as well as a medical certificate from her General Practitioner dated 5 May 2022. Ms Sarzynska's General Practitioner certified that, amongst other matters, Ms Sarzynska had contracted COVID‑19, had a positive PCR diagnosis on 9 April 2022, and that he had given Ms Sarzynska:

[A]n exemption for up to four months per ATAGI guidelines given she will be afforded a level of immunity and she would like to postpone the vaccine until her cough has completely recovered.

  1. [10]
    Thirdly, Ms Sarzynska submits:
  1. I have always intended to comply with reasonable and lawful directions, where I cannot provide free and informed consent to a product in consultation with a General Practitioner, I intended to apply for exemptions. If my exemptions are not accepted I would always agree to undergo discussion about the best course of action given the apparent impasse and never intended to have misconducted myself.
  1. [11]
    Fourthly, Ms Sarzynska submitted that she has had difficulty consenting to receiving the COVID-19 vaccination and particularised a number of reasons for her inability to '… freely and informatively provide consent to receipt of a COVID-19 vaccination' and that the reasons she particularises '… are statements of perception not fact.'
  1. [12]
    Ms Sarzynska then, in her written submissions, sets out those particularised reasons, namely:
  • she was not adequately consulted about the introduction of the Directive;
  • she requested the Department's risk assessment concerning the introduction of the Directive, that risk assessment has never been provided to her and she was never encouraged, or provided an opportunity, to conduct her own risk assessment;
  • none of her concerns about the safety of the vaccines were addressed from her own research;
  • the campaign in favour of vaccination had a tendency not to address risks or concerns;
  • her General Practitioner was unable to provide her with information about her concerns about the vaccine and was only able to provide information about two side-effects, '… but in [sic] her clinical opinion about the other concerns were unknown';
  • she has an oncological history and there is insufficient guidance or debate about '… carcinogenicity and/or genicity of lipid-mRNA or adenovirus delivered therapies of a novel spike-protein';
  • her long-time General Practitioner in early 2021 was unable to advise her to receive the vaccine '… based on my personal medical and health circumstances as the effect on pre-cancer cells was not tested.'
  • her General Practitioner did offer her clinical opinion that NovaVax, a lipid developed protein-based product, may be more appropriate;
  • when applying for an exemption on 22 September 2021, it was her intention to consent to what she considered a safer alternative, based on her medical history, when it became available and if there was not the same '… concerning and unprecedented quantity of adverse events being reported to TGA's Database of Adverse Event Notifications as with other COVID-19 vaccinations at the time';
  • particularly concerning to her were anecdotal reports of aggressive cancer following vaccination, given her history of multiple pre-cancer cells;
  • she felt that the Department did not provide high-quality evidence about the vaccines '… including regarding safety, risks, things to look out for, what to expect, and other important considerations - all materials provided were encouraging and seemed to me to be mostly marketing claims'; and
  • anecdotal evidence of family members and friends who have had major and minor adverse effects on their health following them receiving the COVID-19 vaccine, and that family members and friends had reported that they had to sign '… an indemnity waiver such that the administrators and manufacturers would not be liable.[2]
  1. [13]
    Ms Sarzynska concluded by submitting:
  1. It also became apparent to me that the mandated products are uninsured, and in each case of suspected injury or rare adverse event, it was extremely difficult to seek compensation and those injured were effectively left on their own.
  1. Earlier on when consultation was taking place, full product disclosure forms or product information was unavailable and not provided upon request.
  1. As I was awaiting my preferred and more-recommended product, it became apparent that the vaccinations did not prevent the spread and previously given reasons for the mandate did not stand up to scrutiny. It seems a personal health decision that I continue to reasonably consider and hope to continue to reasonably comply with the policy.

The Department's submissions

  1. [14]
    By way of summary, the Department submitted that:
  • at the relevant time of Ms Sarzynska's suspension from duty, the Directive was reasonable and proportionate having regard to the public health risks of COVID‑19 and the Chief Health Officer Direction regarding workers in a health care setting;
  • Ms Sarzynska was notified of the proposed suspension without pay and was given an opportunity to respond and Ms Sarzynska took up that opportunity;
  • prior to suspending Ms Sarzynska with remuneration, Ms Schultz:

-considered whether there were any reasonable alternatives, including alternative duties or adjustments;

-determined that there was no reasonable alternative role and no reasonable adjustments available, having undertaken an assessment of the allegation made against her, namely, her failure to comply with the Directive; and

-noting that Ms Sarzynska is a Dental Assistant, which is a front‑line operational position in a facility where clinical services are provided, determined there was no reasonable alternative roles or reasonable adjustments available which appropriately managed the risk that arose from Ms Sarzynska's non-compliance with the Directive;

  • while it is acknowledged that the suspension without pay will have a financial impact on Ms Sarzynska, this is only one factor to be considered and must be balanced against the Health Service's obligations to ensure the effective, efficient, and appropriate use of public resources, including the spending of public funds;
  • the Directive mandates the COVID-19 vaccine for employees, Ms Sarzynska exercised a choice to refuse the direction and she was aware of the consequences of failing to become vaccinated under the Directive; and
  • it was fair and reasonable for Ms Schultz to consider it was not in the public interest for Ms Sarzynska to continue to be paid her normal remuneration in circumstances where Ms Sarzynska made a choice not to follow the direction given to her by her employer and was therefore unable to attend to her normal work duties.

The decision was not fair and reasonable

  1. [15]
    Section 137 of the Public Service Act 2008 ('the PS Act') prescribes the circumstances by which a public service employee may be suspended from duty.
  1. [16]
    Relevantly, s 137(1)(b) of the PS Act provides that the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.
  1. [17]
    Section 137(4) of the PS Act provides that a public service employee is entitled to normal remuneration during a suspension unless:
  • the person is suspended under s 137(1)(b) of the PS Act; and
  • the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [18]
    Section 137(9) of the PS Act provides that in suspending a public service employee under s 137, the chief executive must comply with the principles of natural justice, the PS Act and '… the directive made under section 137A.'
  1. [19]
    The directive made under s 137A of the PS Act is Directive: 16/20 - Suspension directive ('the Suspension Directive').
  1. [20]
    Clause 6 of the Suspension Directive relevantly provides:

6.  Suspension without remuneration

6.1  Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.

6.2  A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.

6.3  In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

  1. (a)
    the nature of the discipline matter
  1. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  1. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [21]
    As I stated in Sarzynska No. 1:
  • Ms Sarzynska applied for an exemption from compliance with the Directive, but that exemption was not granted; and
  • there is no dispute that, at all material times, Ms Sarzynska did not comply with the Directive in respect of the requirement that she be vaccinated against COVID‑19.
  1. [22]
    In my view, the decision was not fair and reasonable. There are a number of reasons for my view.
  1. [23]
    First, Ms Schultz did have regard to the nature of the discipline to which she believed Ms Sarzynska was liable. Ms Sarzynska had, at the date of her suspension without remuneration, failed to comply with the direction given in the Directive to be vaccinated against COVID-19. Ms Sarzynska had not been granted an exemption from compliance with the Directive. Further, the certificate Ms Sarzynska forwarded to the Department by email on 3 May 2022, referred to in paragraph [7] of these reasons, had not been the subject of an exemption granted by the Department to her against compliance with the Directive.
  1. [24]
    In addition, the reasons particularised by Ms Sarzynska in her submissions in this appeal as to why she had difficulty complying with the direction given to her in the Directive, are not reasons that have been accepted by Members of this Commission in public service appeal decisions where employees have not been granted exemptions from complying with directions to be vaccinated against COVID-19 on exceptional circumstances grounds.
  1. [25]
    For these reasons, Ms Schultz correctly assessed the nature of the discipline that she believed Ms Sarzynska may be liable, namely, that the disciplinary matter was of a serious nature.
  1. [26]
    Secondly, Ms Schultz fairly took into account the issues raised by Ms Sarzynska about why she should not be suspended without remuneration and, in doing so, properly took into account the issues specified in the Suspension Directive, namely, the nature of the disciplinary matter concerning Ms Sarzynska and the public interest of her remaining on suspension with remuneration.
  1. [27]
    In my opinion, having regard to the serious nature of the disciplinary matter concerning Ms Sarzynska, it was entirely reasonable for Ms Schultz to come to the conclusion that it was not in the public interest that Ms Sarzynska remain on suspension with remuneration. At the point in time when Ms Schultz was making her decision, Ms Sarzynska had not complied with the direction to be vaccinated and because of the nature of her position, Ms Sarzynska's unvaccinated state put at risk her (Ms Sarzynska's) health and safety as a front-line healthcare worker.
  1. [28]
    Similarly, Ms Sarzynska's failure to comply with the direction that she be vaccinated given the requirements of the Directive, and the notice given to Ms Sarzynska to comply with the Directive, were fair and objective bases upon which Ms Schultz could come to a conclusion that it was not an appropriate use of public monies for Ms Sarzynska to remain on suspension with remuneration any further.
  1. [29]
    Thirdly, Ms Schultz's decision, in respect of a consideration that Ms Sarzynska would incur financial hardship, if she was suspended without normal remuneration, was fair and reasonable. Ms Schultz considered that fact against the other relevant fact, namely, that Ms Sarzynska had failed to follow the lawful direction to comply with the Directive and be vaccinated against COVID-19, the consequence of which was that Ms Schultz reasonably believed that Ms Sarzynska was liable to discipline under a disciplinary law. In considering those two facts, Ms Schultz considered that Ms Sarzynska's failure to comply with the Directive outweighed the financial consequences of Ms Sarzynska being suspended without remuneration. In the circumstances, it cannot be said that that aspect of the decision was not fair and reasonable.
  1. [30]
    However, the certificate referred to in paragraph [7] of these reasons, as best as I can understand from all the evidence, was issued for the reason that Ms Sarzynska contracted COVID-19 on about 9 April 2022. On its face, the certificate clearly states that Ms Sarzynska had a medical contraindication to COVID-19 vaccines from 21 April 2022 to 9 August 2022. For this reason, my view is that Ms Sarzynska had a legitimate reason not to be vaccinated during the period 21 April 2022 to 9 August 2022. This does not seem to have been considered by Ms Schultz. In a general sense, it was not fair and reasonable to suspend Ms Sarzynska without remuneration for failing to comply with the Directive when, in light of the certificate, she had a medical contraindication to COVID‑19 vaccines from 21 April 2022 to 9 August 2022. This makes the decision not fair and reasonable. However, there is no evidence that Ms Sarzynska received a COVID‑19 vaccine, as required by the Directive, at any time after 9 August 2022 in circumstances where, after that date, there is no proof of a medical contraindication to COVID‑19 vaccines and no proof of an exemption being granted.
  1. [31]
    The Department's alternative submission is that, having regard to the certificate, it was fair and reasonable for Ms Sarzynska to be suspended without remuneration from 9 August 2022. That was, in light of the certificate and for the reasons I have given in the preceding paragraph, an appropriate submission to make.
  1. [32]
    For these reasons, my opinion is that the decision was not fair and reasonable.

Conclusion

  1. [33]
    The question in this case was whether the decision to suspend Ms Sarzynska without remuneration from 7 June 2022 to 7 September 2022 was fair and reasonable.
  1. [34]
    For the reasons I have given, my view is that the decision appealed against was not fair and reasonable. The appropriate course is to set the decision aside and substitute a new decision which takes into account the certificate.

Orders

  1. [35]
    I make the following orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    the decision appealed against is set aside; and
  1. (b)
    another decision is substituted, namely, that the Appellant be suspended without remuneration from 10 August 2022 until 7 September 2022.

Footnotes

[1] [2022] QIRC 346.

[2] Ms Sarzynska gave some particulars of the family members and friends to whom she referred and she also submitted that each event, to which she referred, could be substantiated if challenged.

Close

Editorial Notes

  • Published Case Name:

    Sarzynska v State of Queensland (Queensland Health) (No. 2)

  • Shortened Case Name:

    Sarzynska v State of Queensland (Queensland Health) (No. 2)

  • MNC:

    [2022] QIRC 418

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    31 Oct 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Sarzynska v State of Queensland (Queensland Health) [2022] QIRC 346
2 citations
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Cite 1 - [2022] QIRC 346
Cite 2 - [2022] QIRC 346

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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